by: Carl Shusterman, Attorney-At-Law

Each year, over 160,000 citizens of the United States marry foreign-born persons and petition for them to obtain permanent residence in the U.S. Spouses of U.S. citizens are considered "immediate relatives" under the immigration laws, and are exempt from all numerical quota limitations. In other words, marriage to a U.S. citizen is the fast lane to a green card.

If the Marriage Occurs in the U.S.

Procedurally, the process works like this. The U.S. citizen must submit a visa petition (form I-130) to appropriate local INS office to prove that the marriage is bona fide, that is, entered into for love rather than simply for the foreign-born spouse to obtain a green card. Attached to the visa petition are the following items: (1) Biographical forms (forms G-325A) for both the husband and the wife with photos attached; (2) Proof of the citizenship status of the petitioner. This can take the form of a U.S. Passport, a Certificate of Naturalization or Citizenship or a certified copy of the citizen's birth certificate; (3) A certified copy of the marriage certificate; (4) Certified copies of the documents that terminated any previous marriages of the husband or wife, including final divorce decrees, and certificates of annulment or death.

Simultaneously, the foreign-born spouse must submit an application for adjustment of status (form I-485) which is an application for a green card. Items which must accompany the green card application are a completed fingerprint charts, green card photographs, an application for employment authorization, an application for a travel permit (known in INS jargon as "advanced parole") and numerous other INS forms.

And don't forget the INS filing fees. Include a single check which includes the filing fee for the visa petition ($80), the application for adjustment of status ($130), the application for work authorization ($70), and the application for a travel permit ($75). If the foreign-born spouse entered the U.S. without inspection, an fine of $650 must be added to the above filing fees.

The INS will accept the applications, cash your check, and schedule an interview somewhere between two months (if you live in Cleveland) and 14 months (if you live in Los Angeles) in the future. If the wait for the interview exceeds 90 days, chances are that the work card and the travel permit will be issued in a matter of days or weeks. If the interview occurs within 90 days, it is possible that no work or travel permit will be issued at all.

If the Marriage Occurs Outside the U.S.

The process is roughly the same except that the foreign-born spouse usually must remain in his or her country until he or she obtains a green card.

The process begins when the citizen spouse submits a visa petition to either the INS office which has jurisdiction over his residence or directly to the U.S. Embassy or Consulate in the country where his spouse resides. The citizen must attach the same items with the visa petition which are listed above including the $80 filing fee.

Once the visa petition is approved, the foreign-born spouse will receive a packet from the National Visa Center (NVC) located in Portsmouth, New Hampshire. The packet informs the foreign-born spouse of the various documents which must be presented at the immigrant visa interview abroad (e.g., passport, police clearances, results of medical examinations, etc.). The packet includes certain documents requesting biographic data which must be completed, signed and forwarded to the U.S. Embassy or Consulate abroad.

Usually, the foreign-born spouse is interviewed and granted an immigrant visa within three to six months. The State Department charges a fee of $200 for an immigrant visa.

Sometimes, in order to avoid a lengthy separation, the spouses return to the U.S. after the marriage and proceed to file the necessary applications once they are both in the U.S. Usually, INS takes a dim view of this practice. It is not uncommon for the INS to stop the foreign-born spouse at the border and exclude him or her from the U.S. as an intending immigrant. However, if the foreign-born spouse is able to enter the U.S., INS will not deny his or her application for a green card simply because he or she entered the U.S. on a temporary visa when their real intent was to remain permanently in the U.S.

Conditional Residence

If the marriage is less than two years old when the foreign-born spouse becomes a permanent resident, the green card will expire after a two-year period. Both spouses must submit a joint petition to remove the two-year condition (form I-751) within the 90-day period immediately preceding the end of the two year period.

If the marriage has terminated by reason of divorce, death of the citizen spouse or spousal abuse, the foreign-born spouse may apply for a waiver of the joint petition requirement.

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Note:

The information provided herein is of general nature, and should not be construed as legal advice.